This post was co-authored by Eduardo Bertoni. It originally appeared on Huffington Post.
In the early days of the Internet, the United States established a near monopoly over Internet protocol and everything that flows from it — code, regulation, policy and an unthinkably powerful Internet technology industry. The NSA leaks provide a chilling example of the consequences that this degree of dominance can have for the world.
Today, most of the ICT private sector is based geographically in the US. This has made it possible for the US government to develop some of the most influential policies and practices that affect the exercise of human rights, like the right to privacy, on the global Internet. Foreign governments have little ability to influence or regulate the actions of companies like Google or Facebook beyond their national borders. Even within their jurisdictions, this can prove difficult.
Why should we assume that these policies will work for the rest of the world?
This dynamic can bring both gains and losses. The Global Online Freedom Act, a bill introduced in Congress that would hinder the ability of US companies to sell surveillance and censorship technologies to repressive governments, could have a positive impact on human rights. But many policies do just the opposite. What we now know about the NSA proves that, in essence, the US government created a surveillance regime not for just for its own country, but for the entire world. It would not be possible for the NSA to spy on millions of Internet users if Google, Facebook, Yahoo! and other leading companies were not located in the US.
We had previously hoped that the US government would regulate these giants with an eye toward the human rights of users worldwide. But the Snowden leaks prove that in some cases, they are doing the reverse. Here, they have taken advantage of their unique situation in order to create what is likely the largest electronic surveillance regime in human history.
For those of us who belong to what is now called “the global south,” the legitimacy of these policies is the same whether it comes from US government policy makers, or senior officials in Silicon Valley. We have not been involved in Washington political processes, nor have we taken part in technology companies’ decision-making about products and services. Of course, the US does not have an obligation to ask our opinion or to take our personal needs into consideration. But the legitimacy that the US has to impose a specific code of law on the Internet is similar to that of the private sector: Both can do so without taking into account the rights and interests of the rest of the world. As a result, we are left with a paradox: Either we accept some kind of “balkanization” of policy — wherein every society has the capacity to influence code through its own policies — or we accept that the only way to move forward is through decisions made by international agreements.
But both of these options are fundamentally flawed. Balkanization could make it impossible to maintain the bountiful “borderless” nature of the Internet as we know it today. And for international agreements to be legitimate, recognized and enforced by national governments, strong and serious engagement would be required from countries around the globe. Unfortunately, this does not yet appear to be happening. For example, there are just two Latin American member countries in the Freedom Online Coalition, a group of governments that came together in 2011 to facilitate a global dialogue about the responsibilities of governments to actively further freedom on the Internet. Participation of other countries from the same region in the annual Internet Governance Forum is equally low.
In today's Internet age, software and hardware designs significantly impact our ability to exercise our rights. That is what Larry Lessig posited many years ago when he wrote that “code is law.” For that reason, and because the “code” is drafted mostly in the US, it is reasonable to question — and to doubt — the legitimacy of these policies for the rest of the world. The question is whether this will remain the status quo, or whether some force, corporate or political, will bring about a shift to a more equal, human rights-protective global Internet.
Eduardo Bertoni is the Director of the Center for Studies on Freedom of Expression and Access to Information (CELE) at Palermo University School of Law, Argentina. From 2002-2005 he served as the Special Rapporteur for Freedom of Expression for the Inter-American Commission of Human Rights at the Organization of American States.